Citation NR: 9600758
Decision Date: 01/25/96 Archive Date: 02/07/96
DOCKET NO. 94-03 454 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Buffalo,
New York
THE ISSUES
1. Entitlement to service connection for hypertension.
2. Entitlement to an increased rating for the postoperative
residuals of anal fistulectomy, currently evaluated as 30
percent disabling.
3. Entitlement to a compensable rating for a psychiatric
disorder characterized as obsessive compulsive defenses
secondary to anal fistulectomy.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America,
Inc.
ATTORNEY FOR THE BOARD
A. D. Jackson, Associate Counsel
INTRODUCTION
The veteran had active service from December 1954 until
September 1958.
This matter came before the Board of Veteransí Appeals
(Board) on appeal from a December 1991 rating decision of the
Jackson, Mississippi, Regional Office (RO) of the Department
of Veterans Affairs (VA). That decision, in pertinent part,
granted service connection for the postoperative residuals of
anal fistulectomy, assigning a 10 percent disability
evaluation, and a psychiatric disorder characterized as
obsessive compulsive defenses secondary to anal fistulectomy,
assigning a noncompensable disability evaluation. That
decision also denied service connection for hypertension.
The veteran subsequently moved from Mississippi to New York.
A September 1993 rating decision of the Buffalo, New York RO,
in pertinent part, increased the rating for postoperative
residuals of anal fistulectomy to 30 percent and a January
1994 rating decision denied service connection for dysthymia
and hypertension, and an increased disability evaluation for
the psychoneurotic disorder characterized as obsessive
compulsive defenses. This decision also denied entitlement
to a permanent and total rating for pension purposes and
entitlement to a total rating based on individual
unemployability.
In statements received by the Buffalo RO in March 1994, the
veteran indicated dissatisfaction with his currently assigned
disability evaluation for the postoperative residuals of
excision of the pilonidal cyst (scar). He also appeared to
raise the issue of service connection for the residuals of a
right inguinal hernia. These issues, and his claims of
entitlement to a total rating based on individual
unemployability and a permanent and total rating for pension
purposes, are referred to the RO for further development.
REMAND
The veteran is claiming that he developed hypertension as a
result of his service connected disabilities. He reports
that he was first diagnosed with hypertension in 1980. He
alleges that his excessive worry concerning his rectal/anal
condition eventually led to hypertension.
Further, he contends that he should be granted an increased
rating for his rectal disability, as the current disability
evaluation does not adequately reflect the severity of his
disability. He argues that the anal disorder should be rated
in view of the treatment required, difficulty with bowel
control, and pain.
The veteran also maintains that his psychoneurotic clinical
signs and manifestations of his obsessive compulsive disorder
have increased, and are productive of at least mild social
and industrial impairment.
The veteranís representative, in a statement dated in
November 1995, contends, in essence, that the veteranís
dysthymia is secondary to his service connected rectal
disability. It is noted that the VA examiner at the most
recent VA examination indicated that the veteranís physical
problems exacerbated his dysthymia. The United States Court
of Veterans Appeals (Court) has held that when aggravation of
a non service-connected condition is proximately due to or
the result of a service-connected disability, the veteran is
to be compensated for the degree of disability over and above
that existing before the aggravation. Allen v. Brown,
7 Vet.App. 439 (1995). This court decision was issued after
the RO transferred the veteranís appeal to the Board. The
RO, therefore, has not had an opportunity to consider whether
the veteran has additional disability resulting from the
service-connected rectal disability, regardless of whether
the service-connected disability caused the disability, or
not.
Further, the representative indicated that there are recent
medical records that have been developed and are not
associated with the veteranís claim file. Under these
circumstances, the Board requires additional development prior
to our proceeding with this appeal, which is consistent with
the United States Court of Veterans Appealsí holding in Harris
v. Derwinski, 1 Vet.App. 180, 183 (1991) directing against the
piecemeal review of veteransí claims.
To ensure that VA has met its duty to assist a claimant in
developing the facts pertinent to the claim and to ensure
full compliance with due process requirements, the case is
REMANDED to the RO for the following development:
1. The veteran should be asked to
provide the names, addresses, and
approximate dates of recent treatment of
all VA and non-VA health providers who
have provided treatment for his
disabilities. When the requested
information and any necessary
authorizations have been received, the RO
should request copies of all pertinent
clinical records that have not been
previously obtained. All records
obtained should be associated with the
claims file. A social and industrial
survey should also be conducted to
determine the veteranís feasibility for
employment.
2. The RO should consider, by formal
rating action, the issues of service
connection for the residuals of a right
inguinal hernia and an increased rating
for the postoperative residuals of
excision of the pilonidal cyst (scar).
3. The RO should continue the
development of the issues of entitlement
to a total rating for compensation
purposes based upon individual
unemployability and entitlement to a
permanent and total rating for pension
purposes.
4. After the development requested above
has been completed to the extent
possible, the RO should again review the
record. If necessary, any additional
development should be undertaken. In
particular, the RO should evaluate the
appellantís claim of entitlement to
service connection for dysthymia with
consideration of the Courtís decision in
Allen. If any benefit sought on appeal,
for which a notice of disagreement has
been filed, remains denied, the appellant
and representative should be furnished a
supplemental statement of the case and
given the opportunity to respond thereto.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The appellant needs take no action
unless otherwise notified.
BARRY F. BOHAN
Acting Member, Board of Veteransí Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, ß 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. ß 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. ß 20.1100(b)
(1994).
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